PEOPLE v. BRAXDTON (2018)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Michael J. Brennan, J.), dated October 19, 2016, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed, without costs or disbursements.

In this proceeding pursuant to the Sex Offender Registration Act (see Correction Law art 6–C;  hereinafter SORA), the Supreme Court assessed the defendant 115 points on the risk assessment instrument, within the range for a presumptive designation as a level three sex offender.  The court denied the defendant's request for a downward departure, and it designated him a level three sex offender.  On appeal, the defendant challenges only the denial of his request for a downward departure.

A defendant seeking a downward departure from the presumptive risk level has the initial burden of “(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] Guidelines;  and (2) establishing the facts in support of its existence by a preponderance of the evidence” (People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85;  see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701;  see also Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [2006] ).  If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an over-assessment of the defendant's dangerousness and risk of sexual recidivism (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701;  People v. Champagne, 140 A.D.3d 719, 720, 31 N.Y.S.3d 218).  Here, the defendant failed to identify the existence of any such mitigating factor (see People v. Curry, 158 A.D.3d 52, 61–62, 68 N.Y.S.3d 483).  Accordingly, the Supreme Court lacked the discretion to downwardly depart, and we agree with its determination to deny the defendant's request for a downward departure (id. at 62, 68 N.Y.S.3d 483).

BALKIN, J.P., AUSTIN, LASALLE and IANNACCI, JJ., concur.